| Beroza v Hendler |
| 2013 NY Slip Op 05607 [109 AD3d 498] |
| August 14, 2013 |
| Appellate Division, Second Department |
| Greggory A. Beroza,Respondent-Appellant, v Michele A. Hendler,Appellant-Respondent. |
—[*1] Amy S. Nord, Valley Stream, N.Y., for respondent-appellant.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by herbrief, from stated portions of an amended judgment of the Supreme Court, NassauCounty (Warshawsky, J.), entered September 15, 2011, which, upon remittitur from thisCourt by decision and order dated March 2, 2010 (see Beroza v Hendler, 71 AD3d 615 [2010]), inter alia,reduced the plaintiff's monthly support obligation for the parties' three children from thesum of $4,833.33 to the sum of $2,076.75, and the plaintiff cross-appeals, as limited byhis brief, from stated portions of the same amended judgment, which, among otherthings, failed to compel the defendant to obtain his approval before incurring certainexpenses not covered by his child support obligation and failed to relieve him of hisstipulated waiver of any claim of entitlement to a share of the defendant's retirementsavings account.
Ordered that the amended judgment is modified, on the facts and in the exercise ofdiscretion, (1) by deleting each dollar amount set forth in the fifth decretal paragraphthereof and substituting the sum of $39,173.20 for the sum of $24,921, the sum of$3,264.43 for the sum of $2,076.75, the sum of $33,770 for the sum of $21,476, the sumof $2,814.17 for the sum of $1,789.67, the sum of $22,963.60 for the sum of $14,612,and the sum of $1,913.63 for the sum of $1,217.67, (2) by deleting from the sixth, ninth,and eleventh decretal paragraphs thereof the provisions applying a percentage of 33.7%to certain expenses so as to calculate the plaintiff's obligations with respect to thoseexpenses, and substituting therefor a percentage of 33.77%, (3) by deleting from the tableentitled "Annotated Summary of Distribution of Assets and Credits to Parties asModified," as set forth in the fifteenth decretal paragraph thereof, the credit to thedefendant for child support in the sum of $53,595.75, and substituting therefor the sumof $135,545.67, (4) by deleting from the table the credit to the defendant for childsupport in the sum of $14,758.25 and substituting therefor the sum of $37,324.17, (5) bydeleting from the table the total credit and net total credit to the defendant in the sum of$321,624.50, and substituting therefor the sum of $426,140.34, and (6) by deleting fromthe table the net distributive cash award to the plaintiff in the sum of $313,996.50, andsubstituting therefor the sum of $209,480.66; as so modified, the judgment is affirmedinsofar as appealed and cross-appealed from, with costs to the defendant.
As set forth in our decision and order dated March 2, 2010, issued in connection withthe plaintiff's prior appeal (seeBeroza v Hendler, 71 AD3d 615 [2010]), the plaintiff and the defendant [*2]were married in 1990, and the plaintiff commenced thisaction for a divorce and ancillary relief in 2001, when the oldest of the parties' threechildren was 4½ years old and their twins were 18 months old. The parties are botheducated professionals. The plaintiff is a veterinarian with a private practice devoted tohorses, and owns a related business which boards horses and rents the premises for polomatches, and the defendant is a partner in a group anesthesiology practice. Both partiesworked throughout the marriage and lived an affluent lifestyle in Laurel Hollow.
Although the parties agreed that the defendant would have legal and residentialcustody of their three children, they vigorously disputed every financial issue during an11-day trial conducted in February 2007. In its decision after trial, the Supreme Courtimputed gross annual income to the plaintiff in the sum of $259,100, calculated theplaintiff's annual child support obligation as 29% of $200,000, or $4,833.33 monthly,and concluded that the plaintiff's pro rata share of certain additional expenses for thechildren was to be 40%, based on the parties' respective incomes. These figures werereflected in the judgment of divorce entered August 19, 2008 (hereinafter the 2008Judgment).
On the plaintiff's appeal from the 2008 Judgment, inter alia, we agreed with thedetermination imputing annual gross income to the plaintiff in the sum of $259,100, butremitted the matter to the Supreme Court "for a recalculation of the plaintiff's childsupport obligation" because the Supreme Court had failed to set forth the parties' pro ratashares of child support and to adequately explain its application of the " 'preciselyarticulated, three-step method for determining child support' " pursuant to the ChildSupport Standards Act (hereinafter the CSSA) (Beroza v Hendler, 71 AD3d 615, 617 [2010], quotingDomestic Relations Law § 240 [1-b]).
On remittitur, and after considering submissions by the parties, the Supreme Courtdetermined their respective annual net incomes to be $248,721 for the plaintiff and$487,693 for the defendant, for a net combined parental income of $736,414. However,for the purpose of determining the plaintiff's child support obligation, the court cappedthe combined parental income in the sum of $255,000. The Supreme Court found that,considering the factors set forth in Domestic Relations Law § 240 (1-b) (f)(hereinafter the paragraph [f] factors), the sum of $255,000 "adequately reflects a supportlevel that meets the needs and continuation of the children's lifestyle, as dictated by thepast spending practices of the parties." After correspondingly revising the plaintiff's prorata share of the children's expenses from 40% to 33.7%, the Supreme Court applied thestatutory percentage to combined parental income capped at $255,000, and calculatedthat the plaintiff's support obligation for the parties' three children was to be in the annualamount of $24,921, or $2,076.75, monthly. The court thereafter entered an amendedjudgment, inter alia, directing the plaintiff to pay that monthly amount.
While the Supreme Court properly, upon remittitur, articulated its analysis pursuantto the three-step method for determining child support embodied in the CSSA guidelines,the court improvidently exercised its discretion in capping the parties' combined parentalincome at $255,000. Proper consideration of the paragraph (f) factors, as required indetermining the amount of child support for income in excess of the statutory limit(see Domestic Relations Law § 240 [1-b] [c] [3]), does not support theSupreme Court's finding that a monthly support obligation of $2,076.75 "adequatelyreflects a support level that meets the needs and continuation of the children's lifestyle, asdictated by the past spending practices of the parties." In the interest of efficiency andjudicial economy, rather than again remit the matter to the Supreme Court, we deem itappropriate to conduct our own review of the record, which is sufficiently developed,and to recalculate the plaintiff's child support obligation for his three children, as well asother sums set forth in the amended judgment that were derived from the plaintiff's childsupport obligation (see Lueker vLueker, 72 AD3d 655, 658 [2010]; Matter of Gartmond v Conway, 54 AD3d 952, 954[2008]).
Under the first step of the analysis, a court must determine the parties' combinedparental income (see Matter of Cassano v Cassano, 85 NY2d 649, 653 [1995]).Here, it is undisputed that the parties' annual net combined parental income is $736,414.With regard to the plaintiff's pro rata share of the combined parental income, we agreewith the defendant that 33.77% is a more precise calculation of the quotient obtained bydividing $248,721 by $736,414, as opposed to [*3]thepercentage applied by the Supreme Court, which was 33.7%.
Under the second step of the analysis, pursuant to Domestic Relations Law §240 (1-b) (c) (1), we multiply so much of the combined parental income up to$80,000—which was the "statutory cap" in effect on the date of the 2008Judgment (see Matter of Parsickv Rubio, 103 AD3d 898 [2013])—by the applicable statutory childsupport percentage, or 29% for the parties' three children (see DomesticRelations Law § 240 [1-b] [c] [2]; Matter of Cassano v Cassano, 85 NY2dat 653). We then allocate the resulting amount of $23,200 between the parties accordingto their pro rata share of the combined parental income (see Domestic RelationsLaw § 240 [1-b] [c] [2]). The plaintiff's share of the basic annual supportobligation is 33.77% of $23,200, or the annual sum of $7,834.64.
The third step in the analysis applies where, as here, the combined parental incomeexceeds the applicable statutory limit of $80,000. In this situation, "courts [have] thediscretion to apply the 'paragraph (f)' factors, or to apply the statutory percentages, or toapply both in fixing the basic child support obligation on parental income over $80,000"(Matter of Cassano v Cassano, 85 NY2d at 655; see Domestic RelationsLaw § 240 [1-b] [c]; Matter of Gartmond v Conway, 54 AD3d at 954-955;Tryon v Tryon, 37 AD3d455, 457 [2007]). As applicable here, the paragraph (f) factors include aconsideration of the financial resources of the custodial and noncustodial parent, and thestandard of living the child would have enjoyed had the marriage or household not beendissolved (see Domestic Relations Law § 240 [1-b] [f] [1], [3]). Thesefactors further the objectives of the CSSA, which include "the assurance that bothparents would contribute to the support of the children" and that the court consider "thetotal income available to the parents and the standard of living that should be shared withthe child" (Matter of Cassano v Cassano, 85 NY2d at 652 [internal quotationmarks and citations omitted]).
Here, the Supreme Court providently exercised it discretion in applying the statutorychild support percentage of 29% to the amount of the combined parental income itconsidered in excess of $80,000, but improvidently exercised its discretion in capping theamount of combined parental income at $255,000, an amount which was only marginallyhigher than the plaintiff's net annual income of $248,721. The capped amount, in effect,improperly excluded consideration of the mother's net annual income of $487,693,contrary to the cost-sharing scheme directed by the CSSA (see DomesticRelations Law § 240 [1-b] [f] [1], [3]). Thus, in considering the relevant paragraph(f) factors, including the affluent lifestyle which the children undisputedly enjoyedduring the parties' marriage, commensurate with the parties' education and net combinedannual parental income of $736,414, we find that $400,000 is an appropriate cap to theparties' combined annual parental income for purposes of calculating the plaintiff'ssupport obligation pursuant to the statutory percentage (see Matter of Parsick vRubio, 103 AD3d at 898; Cusumano v Cusumano, 96 AD3d 988 [2012]; Huffman v Huffman, 84 AD3d875 [2011]; Kaplan vKaplan, 21 AD3d 993 [2005]).
Thus, under step three, we apply the child support percentage of 29% to the amountof the cap in excess of $80,000, or $320,000, which yields the annual amount for bothparents of $92,800, the plaintiff's share of which is 33.77%, or $31,338.56. Adding thisamount to the plaintiff's basic annual support obligation of $7,834.64 yields an annualobligation of $39,173.20, or $3,264.43 per month. In light of this adjustment to theplaintiff's child support obligation for three children, we have correspondinglyrecalculated the amounts in the amended judgment which relate to the plaintiff's childsupport obligations for two unemancipated children and one unemancipated childrespectively, as well as the amounts of the defendant's credits for child support to be usedin reducing the plaintiff's net cash distributive share of the marital property. We modifythe amended judgment accordingly. There is no merit to the defendant's contention thatthe court should apply the sum of $130,000 instead of $80,000 as the basic statutory cap.
On the cross appeal, the plaintiff contends that the Supreme Court erred in failing tocompel the defendant to obtain his prior approval before incurring expenses not coveredby his child support obligation and in failing to relieve him of a stipulation, made in opencourt, by which he waived any claim of entitlement to any part of the sum of $135,003,representing the funds in the defendant's retirement savings account. These contentionsare without merit. Eng, P.J., Rivera, Angiolillo and Balkin, JJ., concur.